Guitar Wars – Martin Fights to Save Wildlife and Its Brand

“Please Papa can I go. Down to Richmond to the traveling show. Please Papa don’t you say I can’t. I just want to see the elephant.” See The Elephant, music and lyrics by James McMurtry.

I’m not a lucky person. I’ve never won the lottery, not even a five-dollar scratch-off. And when it comes to art, I’d have better luck at a raffle drawing than drawing an object, portrait, or thing. But this past weekend, I found myself in front of a booth run by Martin Guitar being invited to enter a contest that would require both luck and artistic talent to win.

442319.DOCFor those not familiar with the hierarchy of guitar-dom, C.F. Martin & Co. of Nazareth, PA. occupies the pinnacle of the acoustic guitar realm. (For those really not familiar with these six and 12 string instruments, “acoustics” are the hollow wooden ones).

The contest seemed simple—it was part of Martin’s “Draw an Elephant, Save an Elephant” campaign directed to raising awareness for the plight of that endangered species. The connection between elephants and guitars seemed a bit obscure, considering that the pachyderms are more likely to stomp on a guitar than to fingerpick one. But who was I to scoff at a worthy cause? Besides, I’ve been tuned-in to the evils and perils of poaching elephants in the jungle ever since watching Tarzan and the Ivory Hunters at a 25-cent Saturday matinee back in the day. As it turns out, Martin Guitar has a long history of environmental stewardship. Years ago, Martin Guitar substituted a synthetic for the ivory used on its instruments.

To enter this contest, #Save Elephant, all you had to do was draw an elephant and you were eligible to win a prize. Pretty simple. But to me, it was daunting. I had been kicked out of remedial art class in elementary school. So my “flight” instincts kicked-in.

But the folks running Martin’s booth were friendly, and my son, a graphic designer, egged me on. I decided to give it a shot. After all, we were at The Newport Folk Festival, we’d been enjoying energetic and passionate performances across three stages strategically placed around an old fortress that once protected Rhode Island from pirates and non-musical British invasions. The sun shone and spirits were high. And I was surrounded by an array of gorgeous C.F. Martin guitars—the same brand made by this family company since 1833 and played by legends and musical greats for over a century. Hank Williams strummed a Martin model D-28 that Neil Young now owns and plays in concert. Woody Guthrie owned several Martins. And Bob Dylan played a Martin guitar before famously picking up an electric Fender Stratocaster at Newport 50 years ago this past week, shattering the folk music world, prompting boos from the crowd, and changing popular music forever. (A 50th anniversary tribute to this seminal moment from 1965 capped this year’s Newport weekend. The infamous Fender was on hand, strummed by Taylor Goldsmith, a member of the indie-folk band Dawes, leading a soaring version of Maggie’s Farm, backed by keyboard legend Al Kooper who played the same organ lines when Dylan performed that song five decades earlier.)

Martin was offering one prize per hour, and for all I knew, a guitar could have been one of them. So rather than succumb to my inhibitions and phobias, I reached for a pen and began drawing my elephant. I won’t say it was elegant. I won’t say is was attractive. But my drawing definitely captures a certain elephantine essence. I eschewed cubism and abstract expressionism for my own brand of post-modern realism, that is to say, you’d have no trouble recognizing the trunk, ears, tusks, and stumpy legs of my elephant masterpiece.

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I signed my work, filled out the entry information, and went back to enjoying music and Newport Harbor breeze.

About an hour later, my cell phone rang. It was a call from “Allentown, PA.” Not knowing anyone from that part of the Keystone State, and being in the middle of a migration from one festival stage to the next, I almost declined the call. But instinct urged me to answer. “This is Martin Guitars. You’re our twelve-o’clock winner,” the caller said. I froze, disrupting the stampede of festival foot traffic, then I headed to the Martin Guitar booth. There I met Skip, who congratulated me and showed me a table piled with prizes. No, the guitars weren’t part of the contest. But I got to select a t-shirt with the original Martin logo and lettering, direct from the company archives:

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Admiring the logo, I mentioned that when I’m not attending music festivals and concerts, I’m a trademark lawyer, and told him about my interest in brands and their histories. We then discussed, how, as with many brands, the Martin logo and iconography have evolved. But the essence of Martin’s brand identity has remained constant through the use of the C.F. Martin name, and through continuous use of Martin’s simple, iconic, headstock design:

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I then learned from Skip that Martin Guitar was no stranger to intellectual property battles. A few years ago, on a visit to China, the company’s sixth-generation CEO, Chris Martin, discovered a collection of guitars that looked like genuine Martins, but were actually poorly made counterfeits. (Where a genuine Martin takes weeks to make by hand and may sell for several thousands of dollars, the Chinese company was mass-producing its ersatz Martins and selling them for a few hundred dollars each). It turned out that another company had registered Martin’s trademark in China, and was hijacking Martin’s reputation under the protection of Chinese law. (Michael Jordan faces similarly vexing copycats of his name and the “Jumpman” logo.)

Martin took action, registering the shape of its iconic headstock as a trademark in the United States Patent and Trademark Office:

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(Registration No. 3,048,307). Martin also recruited Pennsylvania Senator Robert Casey to come to its aid. But the problems Martin faced in China stem from that country’s legal system. Chinese trademark law protect the first company to file for a mark in that country, even if that company is hijacking a brand that’s famous elsewhere in the world. And the law in China lets that company sue if the Real McCoy tries to sell its genuine goods in China.

Martin Guitar’s experience in China highlights the need for companies with strong U.S. brands and worldwide reputations to take preemptive action. Brand owners need to be proactive, aggressive, and creative. They should consider trademark registrations for key brand names, logos, and shapes in key countries, especially ones like China with reputations for counterfeiting. Like Martin Guitar, don’t just register words, look at products shapes and designs, which can also qualify for protection under trademark and patent law. And be vigilant. Otherwise, like the elephants that gave rise to this story, a famous trademark may be prone to poaching, which can weaken a brand, and in rare cases, drive it to the point of extinction. And the last thing anyone needs is another crude drawing from me trying to save another endangered species.

QUOTE OF THE DAY: “Sometimes the nicest thing to do with a guitar is just look at it.” Thom Yorke.

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Oh Lord, Stuck In The Courtroom Again: John Fogerty Sues Ex-Bandmates

“Back then long time ago when grass was green. Woke up in a daze. Arrived like strangers in the night.
Fab – long time ago when we was fab. Fab – back when income tax was all we had”

When We Was Fab music and lyrics by George Harrison

Just as the sun rises in the East, bands break up.  It’s a fact of life.  Rivalries, jealousies, egos, long rides in cramped vans, and the passage of time all act like tectonic plates clashing and grinding and leading to gaping fissures that cannot be mended. And so, The Beatles, Cream, Crosby, Still, Nash & Young, Fleetwood Mac, The Eagles, and countless others have cracked under the pressures and pitfalls of fame and fortune.  Some have managed to forge truces after their heydays have passed, hoping to cash in on the heady combination of nostalgia and swelling bank accounts of their prosperous Baby-boomer-turned AARP-member fans.

But some breakups are so rife with vitriol that they are irredeemable. So it was with Creedence Clearwater Revivial, the 1960s stars founded by John Fogerty and his brother Tom.  Despite a string of top 10 classics including Proud Mary, Heard It Through The Grapevine, Fortunate Son, and Who”ll Stop The Rain, CCR imploded in a burst of acrimony fueled in part by leader John Fogerty and his feud with record mogul Saul Zaentz over song rights and royalties.  So bitter was Fogerty that when he released his smash solo comeback record “Centerfield” in 1985 after a 9-year hiatus, it included the song “Zanz Can’t Dance” with the lyric: “Zanz can’t dance but he’ll steal your money.”  Things got so bad that Fogerty was eventually sued for plagiarizing his own music by Zaentz’s label Fantasy Records.

Now, the tables have turned with Fogerty in the position of plaintiff in litigation with his former CCR band mates.  A few years back, Fogerty sued to block them from performing as Creedence Clearwater Revisited.”  That suit eventually settled: Fogerty agreed to let them use that name, but only if both band mates were part of the band, and then only if they shared a cut of their ticket and merchandise sales with Mr. Fogerty.

Now, that détente has unraveled as “Revisited” hit the road with just one former “Revival” member, and without paying the money they owe Fogerty.  As reported today in IP 360, Fogerty suit asks for an injunction to stop Revisited from using the Creedence Clearwater name at two upcoming California shows.  He also asks for the money he’s owed since his ex-mates stopped payments a few years ago.

So once again, John Fogerty is singing the blues for an audience of 1 judge and 12 jurors.  His legal woes illustrate the inherent tension between law and music–Fogerty followed the playbook by inking a contract that was supposed to control who, when, where, and how his former band mates could use the band name that Fogerty propelled to fame with his signature lead vocals.  But when one party strays from the terms of the deal, the only recourse is lawyers and lawsuits, which can sometimes cost more in fees, time, and trouble than the lawsuit is worth.

But it’s not just about money.  It’s about reputation and principle.  And so, like the iconic steamer Proud Mary, John Fogerty keeps on turning the big wheel–this time, however, it’s the wheel of justice.

QUOTE OF THE DAY: “Decadent self-expression has no place in rock and roll.”
Dave Marsh, Fortunate Son: The Best of Dave Marsh

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Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme

Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme.

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Stop, Hey, That’s My Sound! Neil Young Protests Donald Trump Campaign Theme

“I am a lonely visitor. I came too late to cause a stir, Though I campaigned all my life
towards that goal. ” Campaigner by Neil Young

donald and neil

The race to win the Republican Presidential nomination, already awash with candidates, got weird this week when Donald Trump threw his hat into the ring. Weird not just because of The Donald’s trademarked boardroom bravado as he took on the competition. The Donald expected jibes from members of the press who he labeled as “losers,” and from the likes of “Jeb!,” Marco, Rand, Huckabee, and the rest of the GOP hopefuls. But his first opponent hails from North of the Border with “dream comfort memory to spare,” Yes, before Mr. Trump could begin proving his Presidential mettle, he had to tackle Neil Young.

The confrontation erupted over Trump’s choice of theme song–Neil’s iconic anthem “Rockin’ In The Free World.” The Donald and his minions no doubt chose “RITFW” for its rousing refrain “Keep on rockin’ in the free world.” No one in Trump’s camp apparently ever listened to the rest of Neil’s song–the parts that deal with homelessness, addiction, and environmental destruction. News flash to The Donald–“Rockin’ In The Free World” is an indictment of the 1980’s, the song steeped in the anguish of “people sleeping in their shoes,” who “hate their li[ves},” of “kids who will never go to school, never get to fall in love never get to be cool.”

Never one to let irony obscure good PR, Trump marched to the podium with RITFW’s chorus blaring behind him. (The Donald no doubt doused his mane with an extra shellacking of aerosol to avoid being blown away as Neil’s feedback-drenched guitar roared like a hurricane.)

Before the 24 hour news cycle had run its course, Trump’s camp heard from Mr. Young’s. Neil was not amused. First, Young issued a short statement saying he did not authorize Trump’s use of the song.

Now, the legalities of this situation are anything but simple. Multiple layers of rights are involved. Copyright protects the song. Trump apparently accounted for that, obtaining a public performance license that covered “RITFW.” (These are available from rights organizations like ASCAP and BMI, and generally cover vast catalogs of songs.) But copyright is only part of the puzzle. Artists and other celebrities may have a “right of publicity” under state laws, which gives them control over the use of their image, likeness, or persona. And U.S. and state trademark laws prohibit false endorsements. So while Trump may have ponied up for a copyright license, Young still had two other legal weapons at his disposal–ones that went to the fundamental issue of whether an artist can control how, when, and where his or her image and reputation can be used by someone else for commercial or political advantage.

The next day brought more introspective commentary from Neil Young. An outspoken performer who has penned his share of political protest songs and has lent his name and talents to many political causes, Neil Young was especially miffed to have one of his signature hits appropriated by a politician without his permission:

“Music is a universal language. So I am glad that so many people with varying beliefs get enjoyment from my music, even if they don’t share my beliefs. “But had I been asked to allow my music to be used for a candidate, I would have said no.” wrote Mr. Young.

This is not the first time a politician has clashed with a musician. Bruce Springsteen (Born In the USA), Jackson Browne (Running On Empty), and Tom Petty (American Girl) are just some of the singer/songwriters who have spoken up in protest when a candidate used one of their songs as a campaign anthem. In almost every case, when a musician and politician go eyeball to eyeball, the politician blinks. George W. Bush in fact relented when called upon by Tom Petty to cease and desist using “I Won’t Back Down.” Now there’s irony that both sides of the aisle can appreciate.

Quote of the Day: “Politics has become so expensive that it takes a lot of money even to be defeated.” Will Rogers

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INTA The Woods

“And I know things now. Many valuable things that I hadn’t known before.” I Know Things Now, from the musical Into The Woods. Music and lyrics by Stephen Sondheim.
Going to INTA, the International Trademark Association’s annual meeting, sometimes feels like being in a fractured fairy tale. At first glance, it seems exciting and glamorous. Huge convention. Almost 10,000 attendees. The cream of the trademark bar. International crowd, well-heeled and elegant. Prime locations like San Diego (this year’s destination), Hong Kong, Seattle, Berlin. Dinners, parties, and countless small encounters with clients, colleagues, and even the competition. Four or five days away from the daily grind, yet thrust into a new normal of late night soirees followed by red-eyed early morning meetings and the desperate search for a strong cup of Joe. The pace is fast, the stakes are high, and, as one quickly discovers, the glamour quickly fades into a reality more akin to Mad Men if not Mad Max. To borrow a phrase from another film that simmers with anxiety and terror, INTA is “No Country For Old Men.”

So why do we go? Why subject our bodies and psyches to such abuse? Because  humans–even trademark lawyers–thrive on challenges. Optimism courses through our veins. And our memories are mercifully short. Last year’s fiasco of a taxi queue that made you miss a key client meeting and lose out on a big case? Ancient history. This year will be different. A triumph. Like Caesar returning to Rome after conquering Gaul, we’ll exude confidence and savvy. And this May, after this INTA, we’ll live happily ever after. Until next May, when dismay begins to rise in our gullets once again as we set off to write the next chapter in our sometimes grim, never dull, and always promising INTA fairy tale.

QUOTE OF THE DAY: “Experience is the teacher of all things.” Julius Caesar

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Beer TM Today, Gone Tommorow: IPA Spat Goes Flat

“The room was humming harder, As the ceiling flew away, When we called out for another drink, The waiter brought a tray.” A Whiter Shade of Pale by Keith Reid, Gary Brooker (recorded by Procol Harum)

Surprise turned to Schadenfreude last week in trademark land when micro-brewer Lagunitas sued micro-legend Sierra Nevada for trademark infringement. The mark at issue? IPA–a common acronym for the style of beer called “India Pale Ale.” For years, Lagunitas’s IPA packages featured the letters IPA in large, highly stylized script. And Lagunitas saw red when Sierra Nevada changed the packages for its IPA to put those letters front and center:

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Scores of brewers offer up their takes on this hoppy variety of pale ale. And many call it “IPA.” So the odds that any one company could snag “IPA” as a trademark would seem long at best–not the makings of a good bar bet. But those long odds did not deter Lagunitas. In its lawsuit, the company focused on style, not substance. According to Lagunitas’s complaint in Federal court, the letters IPA weren’t the issue. Sierra Nevada’s offense was copying the large-letter format and style of Lagunitas’s IPA logo.

But in this era where microbreweries are giving the beer establishment a run for its money and craft beer isn’t just for hipsters anymore, the nuances of trademark law sometimes can get lost on the blogosphere. Rather than stirring up sympathy, the lawsuit sparked a brew-haha of criticism, with Twitter and other social media sites overflowing with outrage over the idea that one brewer could monopolize IPA. So even though that wasn’t Lagunitas’s aim, the brewer responded to the backlash with contrition reminiscent of a morning-after dose of reality. In a Twitter post, owner Tony Magee wrote: “Today, I was seriously schooled . . . Tomorrow morning we’ll drop the infringement suit.[and] get back to answering other questions.”

So Lagunitaas learned a valuable lesson. When it comes to IP rights for IPA, size apparently doesn’t matter.

QUOTE OF THE DAY: “I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts, and beer.” Abraham Lincoln

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Turtles to Satellite Radio: Get Sirius About Pre 72 Public Performance Royalties

“Got a idea tell you what let’s do
Let’s go out to that place on the Turtle Bayou
We’ll maybe get lucky, maybe get shot
It couldn’t be half of the trouble I got” Turtle Bayou by James McMurtry

You remember the Turtles? The mid ’60s group best known for the hit song “Happy Together?” The semi-parody love song that ended with the line “So Happy Together. How is the weather?” Not exactly the type of sheer profundity that propelled Lennon, McCartney, Dylan, and Paul Simon into Rock and Roll immortality. And yet, when it comes to the music of pre ’72 AM radio, the cornucopia of rock, soul, pop, psychedelic, country, and easy listening that all managed to coexist on stations such as WABC in New York and WFIL in Philly, the Turtles just may go down in history–not for their music, per se, but for their persistence in pursuing their legal rights.

It all has to do with the interplay between Federal Copyright law and state protection. In general, where Copyright is concerned, Federal law trumps state law under a doctrine called “preemption.” Simply but, when Congress passes a law to implement a constitutional right, like copyright or patents, the states generally can’t step in with laws of their own–otherwise, there could be overlap, inconsistencies, and confusion. But what about areas where Congress has chosen not to act? One of those areas concerns so-called “public performance rights” for songs recorded before 1972. Under current Federal Copyright law, when a satellite radio station plays a song recorded after 1972, the station pays royalties to the composer and to the performer. The latter royalty is called the “public performance right.” But this performance right applies only to songs recorded after 1972. Essentially, satellite radio gets to play pre-72 recording for free, according to Federal Law.

Many musicians with hit songs from before MTV object to this free-pass for old recordings. They claim that it robs them of income if not livelihoods. Facing the music, several states have passed laws to “correct” the situation. Not coincidentally, the biggest states to do this–New York, California, FLorida–are where many disgruntled makers of Golden Oldies live and work today.

Sirius satellite radio has been fighting these state laws; and the band that has been their defender is not the Beatles, the Rolling Stones, The Who, or any other giants of the Woodstock era. No, it’s the Turtles who have come out of music history’s shell to press the case for pre ’72 royalties under state law.

And like that mythical contest that pit a speedy and cocky frontrunner against a slow but steady underdog, the Turtles have been winning the race. Just last week a Federal Court in New York affirmed a ruling that the satellite radio must pay the tab for pre ’72 public performance royalties. Judges in California have reached the same conclusion, and a Florida court is expected to rule on the issue soon.

So when it comes to listing the most influential animal-themed bands of the 20th Century, the Turtles may be an afterthought after BYRDS, ANIMALS, EAGLES, CRICKETS, and BEATLES; but all of these groups have either disbanded, been decimated by the ravages of time, or are infamously acrimonious. With their legal legacy, however, the TURTLES appear to be still Happy Together.

QUOTE OF THE DAY: “One of the nice things about a favorite pop song is that it’s an unconditional truce on judgment and musical snobbery. You like the song because you just do, and there need not be any further criticism.” Henry Rollins

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